IMPORTANT POINT
An order issued by an unauthorized person under the Tamil Nadu Highways Act is invalid and lacks jurisdiction.

ORDER :

(M. Sundar, J.) :

Captioned main 'Writ Petition' {hereinafter 'WP' for the sake of brevity} has been filed assailing an 'order dated 10.06.2024 bearing reference Ku.No.05-1/Encroachment/2024/E.Po' {hereinafter 'impugned order' for the sake of brevity} made by R4 {the Junior Engineer, Highway Department (C & M), Uthukuli, Tiruppur District}. A scanned reproduction of the impugned order is as follows:

2. Impugned order says that it has been issued pursuant to an order dated 18.08.2023 in W.P.No.24165 of 2023 being an order made by another Hon'ble Division Bench which is as follows:

3. To be noted, R4 is not a party in W.P.No.24165 of 2023 and there are two private respondents therein namely, R3 and R4. R3 is Karthi. It is not clear if R3 in W.P.No.24165 of 2023 is writ petitioner herein namely, Karthikeyan.

4. Issue notice to respondents.

5. Mr.T.K.Saravanan, learned Government Advocate accepts notice for respondents 1 to 5 and Mr.R.Kishore Kumar, learned Government Advocate (Crl. Side) accepts notice for R6.

6. Considering the limited scope of the captioned WP, main WP was taken up with the consent of both sides.

7. Learned State counsel submits that impugned notice has been issued under Section 28(2)(ii) of 'the Tamil Nadu Highways Act, 2001' {hereinafter 'Highways Act' for the sake of brevity}.

8. A careful perusal of Section 28(2)(ii) of Highways Act makes it clear that it can be issued by either 'Highways Authority' or 'Any person authorized by Highways Authority'. 'Highways Authority' has been defined under Sub-Section (13) of Section 2 of Highways Act and Section 2(13) of Highways Act takes us to sub-section (2) of Section 5 of Highways Act.

9. Section 2(13) of Highways Act reads as follows:

'(13) "Highways Authority" means the officer appointed under sub-section (2) of Section 5'

10. Section 5(2) reads as follows:

'5 (1) ..........................................

(2) The Divisional Engineer, Highways Department of the Government in-charge of each division, shall be the Highways authority for that division.'

11. A careful perusal of aforementioned provisions makes it clear that Divisional Engineer, Highways Department of Government In-charge of each Division shall be the Highways Authority for that Division. This is obviously not R4. This means that R4 is not the Highways Authority. As regards, any other person authorized, it comes to light in the hearing that R4 does not fall under the category of any other person, who has been authorized.

12. In the light of the narrative thus far, the impugned order which has been issued by R4 is without jurisdiction / without authority.

13. On the aforementioned short point, impugned order is set aside but it is made clear that all rights and contentions of both sides i.e., writ petitioner as well as State and any other person, who is likely to be affected are preserved for State to issue a fresh notice under Section 28(2)(ii) of Highways Act so that the same is issued either by Highways Authority or any other person authorized on behalf of Highways Authority. When State issues such notice afresh, it is open to noticee to raise all contentions as there is an inbuilt safety valve under Section 28(2)(ii) of Highways Act which provides for noticee being show caused as regards the action qua Section 28(2)(ii) of Highways Act.

14. Captioned WP allowed albeit with the aforementioned observations and preservation of rights in the aforesaid manner. Consequently, captioned two Writ Miscellaneous Petitions are disposed of as closed. There shall be no order as to costs.